Importance of Wills:
- Avoid Intestacy Rules (others might prefer it)
- Preferences/Control over their estates – have comfort on what happens to their property after
they passed
- Do things outside property – burial/final wishes
- Guardian clause for children
Statutory Requirements for a Valid Will:
- S.9 Wills Act 1837:
In writing, signed by testator or some other person in his presence and by his direction
Testator intended by his signature to give effect to the will
Signature is made or acknowledged by testator in the presence of two or more witnesses
present at same time
Each witness either attests and signs the will, or acknowledges his signature in presence of
testator (not necessarily in presence of any other witnesses)
Types of Clauses:
- Revocation – cancels previous wills and declares this is your last will.
- Appointment and Powers of Executors/Trustees
- Appointment of Guardians
- Disposition of Estates and Gifts
- Final Wishes
- Testimonium and Attestation (signed and witnessed).
Test for Capacity:
Mental Capacity Act 2005 – test for capacity.
Based on case law (Banks v Goodfellow [1870]) – testator understands the nature and impacts of the
will. He understands the property which he is disposing and understands the terms and conditions laid
within the will and is in the right mind-set when exercising the execution of the will (Objective Test –
reasonable mindset). ‘’Soundness of mind, memory and understanding’’
Anyone who challenges the will, need to prove evidence (burden of proof).
Issue for capacity – Doctor's note | Witnesses (attestation clause)
MCA 2005 S1-S3: Testator must have requisite capacity
Witnesses:
Anyone over 18 can be a witness – must be in reasonable mindset and state
Who cannot be a witness -
- Beneficiaries/Spouse/Civil partners - will is valid, but the gift will be invalid – S.15 Wills Act 1837
, However:
- The gift will not fail, if ignoring the attestation, the will is duly executed because there are at
least two other witnesses who aren’t beneficiaries/spouses/civil partners.
- Gift within the terms of S.15 Wills Act 1837 may be saved if the will is subsequently confirmed
by a codicil which is independently witnessed.
Beneficiary:
Beneficiary must survive (place days of number to survive – normally 28 days) testator to take gift under
testator's will, otherwise the gift will lapse (beneficiary dies before testator) in which event the subject
matter of intended gift falls into residue or pass under intestacy rules (if residue fails).
If dead, then:
- Substitution by statute under S.33 Wills Act 1837 – direct line of descendants
- Commorientes Rule (S.184 Land Property Act 1925) - younger deemed to have survived the
elder (if survived before testator – if joint tenants (gift) then pass to surviving partner | if
tenants in common (gift) - pass on will or intestacy rules)
Membership of Class:
- Membership of the class closes when there’s an individual who fits the description, who has a
vested interest.
S.33 Wills Act 1837:
Prevents lapse (beneficiary dies before testator) where testator makes a gift in their will to their own
children or remoter descendants. It will operate unless expressly excluded or unless a contrary intention
is obvious.
This section is only intended in direct line of descendants (father - child – grandson):
- Applicable to natural child or adopted child
- Not applicable to step-child
Is also seen as a substitution by statute, if a beneficiary deceases the testator.
S184 LPA 1925 – if two people die simultaneously then the younger is presumed to have survived the
older
Executor:
Executor
- Must be selected by testator (as this will be his responsibility) - someone they can trust and
someone that will not die before the testator
- Legally responsible for carrying out instructions in testator’s will and handling their estate
- Must attain grant of probate (legal document – access/sell/settle assets and debts)
- Unlimited number for testator’s role – only 4 has grant of probate – sensible minimum is
between 2 to 4.
- Avoid Intestacy Rules (others might prefer it)
- Preferences/Control over their estates – have comfort on what happens to their property after
they passed
- Do things outside property – burial/final wishes
- Guardian clause for children
Statutory Requirements for a Valid Will:
- S.9 Wills Act 1837:
In writing, signed by testator or some other person in his presence and by his direction
Testator intended by his signature to give effect to the will
Signature is made or acknowledged by testator in the presence of two or more witnesses
present at same time
Each witness either attests and signs the will, or acknowledges his signature in presence of
testator (not necessarily in presence of any other witnesses)
Types of Clauses:
- Revocation – cancels previous wills and declares this is your last will.
- Appointment and Powers of Executors/Trustees
- Appointment of Guardians
- Disposition of Estates and Gifts
- Final Wishes
- Testimonium and Attestation (signed and witnessed).
Test for Capacity:
Mental Capacity Act 2005 – test for capacity.
Based on case law (Banks v Goodfellow [1870]) – testator understands the nature and impacts of the
will. He understands the property which he is disposing and understands the terms and conditions laid
within the will and is in the right mind-set when exercising the execution of the will (Objective Test –
reasonable mindset). ‘’Soundness of mind, memory and understanding’’
Anyone who challenges the will, need to prove evidence (burden of proof).
Issue for capacity – Doctor's note | Witnesses (attestation clause)
MCA 2005 S1-S3: Testator must have requisite capacity
Witnesses:
Anyone over 18 can be a witness – must be in reasonable mindset and state
Who cannot be a witness -
- Beneficiaries/Spouse/Civil partners - will is valid, but the gift will be invalid – S.15 Wills Act 1837
, However:
- The gift will not fail, if ignoring the attestation, the will is duly executed because there are at
least two other witnesses who aren’t beneficiaries/spouses/civil partners.
- Gift within the terms of S.15 Wills Act 1837 may be saved if the will is subsequently confirmed
by a codicil which is independently witnessed.
Beneficiary:
Beneficiary must survive (place days of number to survive – normally 28 days) testator to take gift under
testator's will, otherwise the gift will lapse (beneficiary dies before testator) in which event the subject
matter of intended gift falls into residue or pass under intestacy rules (if residue fails).
If dead, then:
- Substitution by statute under S.33 Wills Act 1837 – direct line of descendants
- Commorientes Rule (S.184 Land Property Act 1925) - younger deemed to have survived the
elder (if survived before testator – if joint tenants (gift) then pass to surviving partner | if
tenants in common (gift) - pass on will or intestacy rules)
Membership of Class:
- Membership of the class closes when there’s an individual who fits the description, who has a
vested interest.
S.33 Wills Act 1837:
Prevents lapse (beneficiary dies before testator) where testator makes a gift in their will to their own
children or remoter descendants. It will operate unless expressly excluded or unless a contrary intention
is obvious.
This section is only intended in direct line of descendants (father - child – grandson):
- Applicable to natural child or adopted child
- Not applicable to step-child
Is also seen as a substitution by statute, if a beneficiary deceases the testator.
S184 LPA 1925 – if two people die simultaneously then the younger is presumed to have survived the
older
Executor:
Executor
- Must be selected by testator (as this will be his responsibility) - someone they can trust and
someone that will not die before the testator
- Legally responsible for carrying out instructions in testator’s will and handling their estate
- Must attain grant of probate (legal document – access/sell/settle assets and debts)
- Unlimited number for testator’s role – only 4 has grant of probate – sensible minimum is
between 2 to 4.
